July 19, 2005

President Bush chose federal appeals court judge John G. Roberts Jr. on Tuesday as his first nominee for the Supreme Court, selecting a rock solid conservative whose nomination could trigger a tumultuous battle over the direction of the nation's highest court, a senior administration official said.

Bush offered the position to Roberts in a telephone call at 12:35 p.m. after a luncheon with the visting prime minister of Australia, John Howard. He was to announce it later with a flourish in a nationally broadcast speech to the nation.

Roberts has been on the U.S. Court of Appeals for the District of Columbia Circuit since June 2003 after being picked for that seat by Bush.

Advocacy groups on the right say that Roberts, a 50-year-old native of Buffalo, N.Y., who attended Harvard Law School, is a bright judge with strong conservative credentials he burnished in the administrations of former Presidents Bush and Reagan. While he has been a federal judge for just a little more than two years, legal experts say that whatever experience he lacks on the bench is offset by his many years arguing cases before the Supreme Court.

Classmates from both law school and college remember Roberts as a hard working, earnest, kind, and brilliant person. Roberts, who graduated from the College with a summa cum laude degree in History in just three years, wrote his thesis on British liberalism in the early 20th Century.

One of Roberts’ mentors, William P. LaPiana ’74, a pre-law and history tutor in Leverett House when Roberts lived there, recalls Roberts as a “hard working and happy undergraduate who loved studying history.”

LaPiana said that what he remembered most about Roberts was his self-deprecating jokes.

“He had gotten a wonderful grade and a glowing comment on a term paper in a course on American Intellectual History,” LaPiana said. “Afterwards, he walked into my office and said ‘I think I can get my head through the door.’”

Since then, Roberts has easily sauntered through every door in his path.

He went on to HLS, where he served as Managing Editor of The Harvard Law Review, a position that, as one classmate put it, “you didn’t get unless you were among the top 4 or 5 intellectually in the class.”

Roberts’ colleagues on the Law Review spoke highly of his disposition and ability.

Elizabeth R. Geise, who was on the Law Review with Roberts, remembered him as an “honest, forthright, decent, and fair person who was always there on time, always did his job, and was kind to everyone.”

“He was somebody who got along with everyone, who was obviously very bright but not aggressive,” said Paul K. Rowe ’76, who is also a Crimson editor and was on the Law Review. “He had a Midwestern reserve about not showing off how smart he was.”

Roberts, who was born in Buffalo, New York, moved from his hometown of Buffalo, New York, to Indiana after second grade.

Rowe added that those on the Law Review always thought of Roberts as fair, especially on politically divisive issues. “There was a certain amount of left versus right, but John was someone that everyone could talk to and respected.”

“I never thought of him as an ideologue,” Lindsay A. Connor, who was also on Law Review with Roberts, wrote in an e-mail. But Connor said that he has not seen Roberts in more than 25 years and does not know how Roberts has changed.

Other colleagues from the Law Review, however, remembered Roberts as clearly on the conservative side of the spectrum.

Kirkland and Ellis Professor of Law David B. Wilkins ’77 said that Roberts was “more conservative than typical Harvard Law student in the 1970s.” However, Wilkins was quick to point out that today’s political climate is very different from that of the mid-seventies, noting that “90 percent of the Harvard Law School class is more conservative than the typical Harvard Law student in the 1970s.”

After graduating from HLS, Roberts headed inside the beltway. He clerked for William H. Rehnquist, who was an Associate Justice of the Supreme Court at the time. Following his clerkship, Roberts went on to work in the offices of the Attorney General and the White House Counsel. He also served as Principal Deputy Solicitor General under Kenneth W. Starr in the first Bush Administration.

In between stints with the government, Roberts worked at the law firm Hogan & Hartson, where he established himself as a top appellate lawyer with an impressive record—he has argued a total of 39 cases before the Supreme Court, winning 25 of them.

Roberts’ record in Washington impressed President George W. Bush, who nominated him to the D.C. Circuit Court in January 2003—Roberts’ third nomination to the Court. (Both Bushes had nominated him once before, though those nods had stalled before Roberts could be brought for a vote.) Roberts was confirmed 4 months later.

The confirmation process produced a wealth of glowing recommendations. He received the rating of “Well Qualified” without reservation from the American Bar Association, the highest possible mark for a jurist.

The Senate Judiciary Committee was also sent a letter by a bipartisan group of 156 members of the D.C. Bar, all of whom urged Roberts’s swift confirmation. “He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate” the letter said. “He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.”

Walter E. Dellinger III, who served as solicitor general under former President Bill Clinton, even told the Judiciary Committee that, “In my view . . . there is no better appellate advocate than John Roberts.”

On the D.C. Circuit, Roberts has maintained his conservative reputation, although he has yet to weigh in on many of the divisive issues that come before the Supreme Court.

Nevertheless, he is considered to be conservative enough for Bush. As Deputy Solicitor General, he wrote an oft-quoted brief on behalf of the administration that said that “we continue to believe that Roe was wrongly decided and should be overruled.”

Many in Washington speculate that Roberts may be a good choice if Bush wants to avoid a confirmation fight. The New York Times reported last week that members of both parties raised Roberts’ name in a favorable light.

As always, the only folks surprised that the President has chosen a staunch conservative will be conservatives, who have embarrassed themselves the past few weeks fretting that he'd choose a moderate because he isn't truly one of "them."

Judge Roberts, 50, once clerked for Chief Justice William H. Rehnquist. He has been on the Court of Appeals since May 2003. That court has often been a springboard for the Supreme Court; indeed, three current members of the high court were once on the D.C. Circuit.

Mr. Bush had playfully deflected questions earlier in the day about whom he might choose, telling reporters as he has many times before that he would pick a jurist "who will not legislate from the bench."

If confirmed, Judge Roberts might tilt the balance of the court rightward. Justice O'Connor, who has been on the tribunal for 24 years, was widely regarded as a swing justice between the liberal and conservative blocs.

The nominee will now undergo a background investigation. Then his nomination will be considered by the Senate Judiciary Committee, whose chairman, Senator Arlen Specter of Pennsylvania, has said he wants to schedule hearings by late August or September.

If recent history is a guide, the nominee will be questioned extensively about his views on divisive social issues, especially abortion. Republicans have a 10-to-8 advantage on the Judiciary Committee, and they have 55 seats in the Senate, so chances for confirmation would appear to be good - unless the nominee's views arouse enough opposition to inspire a Democratic filibuster. [...]

A Republican with close ties to the administration said that Judge Clement was interviewed as a potential nominee at the White House about a month ago, when the administration was preparing for the possible retirement of Chief Justice Rehnquist. Since then, Justice O'Connor has announced that she will step down while Chief Justice Rehnquist, who has thyroid cancer, has said that he will remain on the job as long as his health permits.

John Roberts
Age: 50
Graduated from: Harvard Law School.
He clerked for: Judge Henry Friendly, Chief Justice William Rehnquist.
He used to be: associate counsel to the president for Ronald Reagan, deputy solicitor general for George H.W. Bush, partner at Hogan & Hartson.
He's now: a judge on the U.S. Court of Appeals for the D.C. Circuit (appointed 2003).

His confirmation battle: Roberts has been floated as a nominee who could win widespread support in the Senate. Not so likely. He hasn't been on the bench long enough for his judicial opinions to provide much ammunition for liberal opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection.

Civil Rights and Liberties
For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).

For Reagan, opposed a congressional effort—in the wake of the 1980 Supreme Court decision Mobile v. Bolden—to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act.

Separation of Church and State
For Bush I, co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. (Lee v. Weisman, 1992)

Environmental Protection and Property Rights
Voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)

For Bush I, argued that environmental groups concerned about mining on public lands had not proved enough about the impact of the government's actions to give them standing to sue. The Supreme Court adopted this argument. (Lujan v. National Wildlife Federation, 1990)

Criminal Law
Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004)

Habeas Corpus
Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004)

Judicial Philosophy
Concurring in a decision allowing President Bush to halt suits by Americans against Iraq as the country rebuilds, Roberts called for deference to the executive and for a literal reading of the relevant statute. (Acree v. Republic of Iraq, 2004)

In an article written as a law student, argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Rogers' alternative interpretation was more protective of property interests than Supreme Court law at the time.

John Roberts Jr. and J. Michael Luttig have both marched up through the Republican ranks, from Supreme Court clerkships to White House jobs to the federal bench.

Now the two Washington-area judges -- Roberts sits on the U.S. Court of Appeals for the District of Columbia Circuit; Luttig is a member of the U.S. Court of Appeals for the 4th Circuit in Virginia -- have emerged on President Bush's short list of potential nominees to the Supreme Court, according to lawyers familiar with the deliberations.

Conservative activists in the Republican base view both as far more acceptable than Attorney General Alberto Gonzales, who has become a top contender for the court, and have begun to promote the pair.

But even though both judges are conservative -- and close friends -- they present a distinctly different choice in style and temperament that could influence their selection and say a great deal about how Bush wants to shape the court.

In his years as a lawyer, Roberts, 50, proved himself an affable and measured member of the Washington legal establishment.

But his short tenure on the bench has meant fewer written opinions that can be parsed for his philosophy.

He has left a long paper trail that liberal critics will try to mine to fight his appointment.

The difference between the two men is a bit like the difference between the two conservative justices they served -- the easygoing William Rehnquist, for whom Roberts clerked in 1980 before Rehnquist became chief justice, and the combative Antonin Scalia, for whom Luttig clerked on the D.C. Circuit in 1982, and who is still a close friend.

"Roberts is known as a much more judicious person. ... Luttig would get certain people really jazzed up," said a former administration official who, like other lawyers contacted for this article, declined to be named for fear of appearing to take sides.

"For conservatives, Luttig is more exciting -- because he is more excitable."

A federal appeals court on Friday backed the Bush administration's plan to let special panels of military officers conduct trials of terrorism suspects detained at the U.S. military prison in Guantanamo Bay, Cuba, overturning a lower-court decision that has blocked the "military commissions" for the past eight months.

The decision clears the way for the Defense Department to use the commissions to try some of the hundreds of detainees in Guantanamo Bay. It was hailed by Attorney General Alberto Gonzales as affirming President Bush's "critical authority" to determine how to try detainees deemed "enemy combatants" in the war on terrorism.

The ruling was an important test of the government's strategy of denying such detainees access not only to civilian courts but to the more formal proceedings of military courts-martial, in which they would enjoy additional rights and legal protections. One of the judges on the deciding panel from the U.S. Court of Appeals for the District of Columbia Circuit, John Roberts, is said to be on the administration's list of possible nominees to the Supreme Court.

At John Roberts' confirmation hearing for a federal judgeship two years ago, Sen. Dick Durbin confronted him with a statement Roberts had made about the Supreme Court under Chief Justice William Rehnquist.

"Many people had characterized it as a very conservative court," Durbin, an Illinois Democrat, told Roberts. "But you said, `I don't know how you can call the Rehnquist court conservative.'"

"What," Durbin asked Roberts, who is now a leading candidate to fill a Supreme Court vacancy, "were you talking about?"

Roberts ticked off a list of recent cases: The Rehnquist court had reaffirmed Miranda, the landmark decision on reading defendants their rights. It had reinforced Roe vs. Wade, which said a woman had a constitutional right to an abortion. It had strengthened bans on school prayer and upheld limits on campaign contributions. It had given criminal defendants greater constitutional rights in their sentencing.

John Roberts Jr., the newest judge on the U.S. Court of Appeals for the D.C. Circuit, was hanging back.

During a typical oral argument last week, colleague Harry Edwards fussed and fumed at the lawyers before him, while David Sentelle tossed out avuncular one-liners in his thick Southern drawl.

But Roberts, the third judge on the panel, was quiet. When he did speak finally, he was barely audible, politely asking a question or two, but never tipping his hand. To anyone watching for the first time, Roberts barely made an impression.

Suddenly, though, a lot of people are talking about this quiet judge, who just turned 50. The fickle spotlight on possible nominees to the Supreme Court if Chief Justice William Rehnquist departs has swung toward Roberts, and seems to be lingering.

In spite of Roberts' quiet manner, his credentials -- former Rehnquist law clerk, deputy solicitor general, top-flight practitioner at Hogan & Hartson and, in the estimation of some, the finest oral advocate before the high court in the last decade -- are speaking for him and winning fans. Add to that a brief 20-month tenure on the court that provides few targets for Democrats, and Roberts is emerging as a top candidate for the high court.

"He is well in the running, and he is superb," says C. Boyden Gray, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committee for Justice, which fights for President George W. Bush's judicial nominees.

"He's a great judge here, but I think we're going to lose him" to the Supreme Court, says a fellow D.C. Circuit judge who asked not to be named.

Reproductive Rights. s a Deputy Solicitor General, Mr. Roberts co-wrote a Supreme Court brief in Rust v. Sullivan,1 for the first Bush administration, which argued that the government could prohibit doctors in federally-funded family planning programs from discussing abortions with their patients. The brief not only argued that the regulations were constitutional, notwithstanding the Supreme Court's decision in Roe v. Wade, but it also made the broader argument that Roe v. Wade was wrongly decided - an argument unnecessary to defend the regulation. The Supreme Court sided with the government on the narrower grounds that the regulation was constitutional.

Environmental Issues. As a student, Mr. Roberts wrote two law review articles arguing for an expansive reading of the Contracts and Takings clauses of the Constitution, taking positions that would restrict Congress' ability to protect the environment. As a member of the Solicitor General's office, Mr. Roberts was the lead counsel for the United States in the Supreme Court case Lujan v. National Wildlife Federation, in which the government argued that private citizens could not sue the federal government for violations of environmental regulations.

As a lawyer in private practice, Mr. Roberts has also represented large corporate interests opposing environmental controls. He submitted an amicus brief on behalf of the National Mining Association in the recent case Bragg v. West Virginia Coal Association. 3 In this case, a three-judge panel of the Fourth Circuit reversed a district court ruling that had stopped the practice of "mountaintop removal" in the state of West Virginia. Citizens of West Virginia who were adversely affected by the practice had sued the state, claiming damage to both their homes and the surrounding area generally. Three Republican appointees - Judges Niemeyer, Luttig, and Williams - held that West Virginia's issuance of permits to mining companies to extract coal by blasting the tops off of mountains and depositing the debris in nearby valleys and streams did not violate the 1977 Federal Surface Mining Control and Reclamation Act.4 This decision was greeted with great dismay by environmental groups. In another case, Roberts represented one of several intervenors in a case challenging the EPAÂ’s promulgation of rules to reduce nitrogen oxide emissions.5

Civil Rights. After a Supreme Court decision effectively nullified certain sections of the Voting Rights Act, Roberts was involved in the Reagan administration's effort to prevent Congress from overturning the Supreme Court's action.6 The Supreme Court had recently decided that certain sections of the Voting Rights Act could only be violated by intentional discrimination and not by laws that had a discriminatory effect, despite a lack of textual basis for this interpretation in the statute. Roberts was part of the effort to legitimize that decision and to stop Congress from overturning it.

Religion in Schools. While working with the Solicitor General's office, Mr. Roberts co-wrote an amicus brief on behalf of the Bush administration, in which he argued that public high schools can include religious ceremonies in their graduation programs, a view the Supreme Court rejected.7

Pro Bono. Mr. Roberts has engaged in significant pro bono work while at Hogan and Hartson, including representation of indigent clients and criminal defendants.

Other Information. Mr. Roberts is a member of two prominent, right-wing legal groups that promote a pro-corporate, anti-regulatory agenda: the Federalist Society and the National Legal Center For The Public Interest, serving on the latter group's Legal Advisory Council.

In the short time since he was confirmed by the Senate in May 2003, Judge Roberts has issued troubling dissents from decisions by the full D.C. Circuit not to reconsider two important rulings. These included a decision upholding the constitutionality of the Endangered Species Act as applied in a California case and a ruling against Bush Administration efforts to keep secret the records concerning Vice President Cheney's energy task force.

Democrats and Republicans are already clashing over what senators should be allowed to ask Bush's Supreme Court nominee about. "All questions are legitimate," Sen. Charles Schumer of New York, a Democratic member of the judiciary committee, told the New York Times. "They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time." Sen. Jeff Sessions, an Alabama Republican who also sits on the judiciary committee, responded, "You cannot ask a judge to prejudge a specific matter."

But the Democrats won't have to prod to find out the views of most of Bush's short-listed candidates on sharply contested areas of law. On abortion, affirmative action, separation of church and state, and the president's authority to detain terrorist suspects indefinitely—all areas in which Justice Sandra Day O'Connor cast a crucial vote for the liberal position in the past several years—many of the short-listers have expressed themselves forcefully. Here's a rundown of what we already know about what they think, beginning with abortion and moving on to other issues later this week. [...]

The hard-liners: In 1991, as deputy solicitor general for President George H.W. Bush, John Roberts (now a judge on the U.S. Court of Appeals for the D.C. Circuit) co-wrote the administration's brief in Rust v. Sullivan. Roberts' position, which was adopted by the Supreme Court, barred doctors and clinics receiving federal funds from discussing the possibility of abortion with their patients or referring them to family-planning clinics that do the procedure. The brief said on behalf of the administration, "We continue to believe that Roe was wrongly decided and should be overruled." Roberts could try to distance himself from this stance by arguing that he was merely stating his client's position, but the stark language in the brief could be hard to disown.

If President Bush is looking for a potential Supreme Court nominee with conservative credentials who would inspire a minimum of fuss at a confirmation hearing, he may turn to Judge John Roberts Jr., say fans of the Buffalo native, who sits on the U.S Court of Appeals for the District of Columbia.

“Almost alone among the serious candidates, Judge Roberts combines youth, intellect, temperament, judicial philosophy, and confirmability,” said a former associate White House counsel,Bradford Berenson, who worked on judicial selection under President Bush.“He is young, he’s bright,he’s conservative,he’s well respected across the ideological spectrum, and he’s unlikely to run into effective opposition if he were nominated.”

But liberal critics say not so fast — a pre-eminent Supreme Court litigator before ascending to the bench, Judge Roberts argued for overturning the landmark abortion rights decision Roe v. Wade while he was deputy solicitor general in the Reagan administration.

A potential battle over his nomination could come down to the question of whether a lawyer should be held responsible for the arguments he makes on behalf of a client.

Roberts' nomination to the appellate bench attracted support from both ends of the ideological spectrum. Some 146 members of the D.C. Bar signed a letter urging his confirmation, including Clinton administration officials.

The letter said: "He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.

Roberts was associate counsel to President Reagan from 1982-86 and then served in the first Bush administration arguing cases before the Supreme Court from 1989-93. The Harvard graduate — undergraduate and law school — clerked for William H. Rehnquist when he was an associate justice on the high court.

At his appellate confirmation hearing in 2003, Roberts sought to reassure senators that he would be guided by legal precedents, not his personal views on issues, saying, "My own personal views would not be relevant.''

He pointed to his record in litigating cases.

"My practice has not been ideological in any sense,'' he said. "My clients and their positions are liberal and conservative across the board. I have argued in favor of environmental restrictions and against takings claims. I've argued in favor of affirmative action. I've argued in favor of prisoners' rights under the Eighth Amendment. I've argued in favor of antitrust enforcement.

"At the same time, I've represented defendants charged with antitrust cases. I've argued cases against affirmative action. And what I've been able to do in each of those cases is set aside any personal views and discharge the professional obligation of an advocate.'' Roberts said.

Roberts also has made the case that some problems simply should be left to the states. In a 1999 radio interview, he said, "We have gotten to the point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it is the Violence Against Women Act or anything else. The fact of the matter is conditions are different in different states, and state laws can be more relevant.''

In one case he handled before the D.C. Court of Appeals, he represented a group of welfare recipients whose benefits had been terminated. He successfully argued that each was entitled to an individual hearing before benefits were cut off. He argued the case on a pro bono basis.

John G. Roberts has solid conservative credentials and a lengthy background as a government lawyer and a private attorney whose clients ranged from big companies to welfare recipients.

But his record as a judge is short and relatively nondescript. Roberts, 50, has been on the U.S. Court of Appeals for the District of Columbia Circuit only since June 2003, where he has shown a penchant for backing the Bush administration.

If confirmed to the Supreme Court, Roberts would immediately be put to the test with four death penalty cases, a challenge to an abortion law, an assisted suicide case, and an appeal that touches on gay rights. All will be argued in the term that begins Oct. 3.

Expect the Democrats' "quota complaints" to appear even before the formal announcement, since they don't even have to do any op research to see Roberts is neither a woman nor a minority (though it would be funny if they voiced those protests long and loud, only to see Rhenquist decide to retire from the county a few weeks from now and give Bush the opening to mute the protests).

"He or she is clearly outside the mainstream of American values," said Sen. Kennedy. "President Bush has again ignored the Senate's 'advice and consent' role, forcing Democrats to filibuster this outrageous nominee."

The Massachusetts Senator said his aides have already discovered "reams of memos" showing that the man or woman Mr. Bush will appoint has "a history of abusing subordinates, dodging military service, hiring undocumented workers, spanking his or her children and rolling back the clock on human rights to the days when the Pharaohs ruled Egypt with an iron fist."

The Senator's office issued a news release to the media documenting the allegations against the potential high court judge, with a convenient blank line allowing reporters to fill in the nominee's name as soon as that information is leaked.

I love Robert's acidic comment concerning the California Endangered Species Act/Interstate Commerce Clause rationalization:
"Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, "for reasons of its own lives its entire life in California."" (via Michelle Malkin)

The lines from the Rancho Viejo matter are more than acidic, they are a rejection of the entire pagan earth-mother complex of toad as Ding-an-sich and, perforce, an affirmation of a bibical view of the relationship af man and nature, and, possible, of Thomistic metaphysics.

The other side wiil see these things, and there isn't a damn thing they can do about it. This is going to be fun to watch.